美国公司法中英文教程Chapter 3

Chapter 3

THE CORPORATE STRUCTURE

I. GENERAL ALLOCATION OF POWERS权利配置

A. Traditional scheme传统模式: A "traditional" scheme for

allocating power in the corporation (reflected in most

statutes) is as follows: [49]

1. Shareholders股东: The shareholders act principally

by: (1) electing and removing directors; and (2)

approving or disapproving fundamental or non-ordinary

changes (e.g., mergers). [49]

2. Directors董事: The directors "manage" the

corporation’s business. That is, they formulate

policy, and they appoint officers to carry out that

policy. [49]

3. Officers高级管理人员: The corporation’s officers

administer the day-to-day affairs of the corporation,

under the supervision of the board. [49]

4. Modification修改: This traditional allocation of

powers usually may be modified by the corporation where

appropriate. This is often done in the case of closely

held corporations. [49]

B. Powers of shareholders股东权利: The main powers of the

shareholders are as follows:

1. Directors选任和撤销董事: They have the power to

elect and remove directors. [50]

a. Election: Shareholders normally elect the

directors at the annual meeting of shareholders.

In other words, directors normally serve a

one-year term. See Revised Model Business

Corporations Act (RMBCA) get to approve or

disapprove of fundamental changes not in the

ordinary course of business (e.g., mergers,

sales of substantially all of the company’s

assets, or dissolution). [50]

C. Power of directors董事权利: The directors"manage"

the affairs of the corporation. [51]

1. Shareho lders can’t give orders股东不能要

求董事采取任何具体的经营行为: Thus

shareholders usually cannot order the board of

directors to take any particular action. [51]

2. Supervisory role监管角色: The board does not

operate the corporation day to day. Instead, it

appoints officers, and supervises the manner in

which the officers conduct the day-to-day

affairs. [51]

D. Power of officers高级管理人员的权利: The

corporation’s officers are appointed by the board,

and can be removed by the board. The officers carry out

the day-to-day affairs. [52]

I.权力配置

A．传统的权利配置模式：

1、股东权利：选任和撤销董事；公式重大事项的决策权

2、董事权利：通过选任该级管理人员负责公司的经营管理，

制定公司的经营方针。

3、高级管理人：负责公司日常事务的实际责任人。

4、现在的公司通常按照公司运营的实际需要进行权利的配

置。

II. BOARD OF DIRECTORS 董事会

A. Election选任: As noted, members of the board of

directors are always elected by the shareholders. [53]

1. Straight vs. cumulative: The vote for

directors may either be "straight" or

"cumulative." (In most states, cumulative

voting is allowed unless the articles of

incorporation explicitly exclude it.) [54]

a. Cumulative累积投票制: In cumulative

voting, a shareholder may aggregate his

votes in favor of fewer candidates than

there are slots available. (Example: H

owns 100 shares. There are 3 board slots.

H may cast all of his 300 votes for 1

candidate.) This makes it more likely that

a minority shareholder will be able to

obtain at least one seat on the board.

i. Removal of directors董事的撤销:

If cumulative voting is authorized,

a director usually may not be

removed if the number of votes that

would have been sufficient to elect

him under cumulative voting is

voted against his removal.

II.董事会

A．选任，董事由股东选举产生。

1、直线投票制和累积投票制

直线投票制，其实是将整个董事会作为整体进行投票，会依据各个股东所持的股份决定其所提名的董事会的得票数，这样很容易造成，整个董事会的选任决定权就大股东手中，其余股东提名的董事很可能全军覆没；累积投票制，将单个董事作为投票对象，一个股东可以将其所有得票投在一位董事身上，因此，在董事会中除绝对大股东外的其余股东也可以选任自己的董事。

B. Number of directors董事人数: The number of

directors is usually fixed in either the articles of

incorporation or in the bylaws. Most statutes require

at least three directors. Most statutes also allow the

articles or bylaws to set a variable (minimum and

maximum) size for the board, rather than a fixed size.

(If variable size is chosen, then the board gets to

decide how many directors within the range there should

be.) [59]

C. Filling vacancies董事空缺的填补: Most statutes

allow vacancies on the board to be filled either by the

shareholders or by the board. [60]

1. Term任期: Statutes vary as to the term of a

replacement director: some let him serve the

full unexpired term of his predecessor, others

make him stand for reelection at the next annual

meeting. (This only matters if the

predecessor’s term was for more than one year).

[60]

2. Classes of stock: The articles of

incorporation may give each separate class of

stock the power to elect one or more directors.

[60]

3. Holdover director董事的延期: A director

holds office not only for the term for which he

is elected, but until his successor is elected

and qualified. A director serving beyond the end

of his term is called a "holdover"director. [61]

D. Removal of directors: Most modern statutes provide that directors may be removed by a majority vote of shareholders, either with or without cause. Modern statutes also generally say that a court may order a shareholder removed, but only for cause. [61]

1. No removal by board: But in most states a

director may not be removed by his fellow

directors, even for cause. [63]

B．董事会人数通常由公司章程或规章制度规定。

C．董事会空缺的填补，由股东或董事会决定

1、替位董事的任期，各州规定不一样，有的规定任

至所替代的董事任期满为止，有的则规定至下一届年

会时进行改选。

2、股票群，公司章程通常规定一定的股东可以选举

一个或几个董事。

3、董事任期的延长，董事任至期满为止，但应当已

经选出合格的继任者。

D．董事的解除，大多数州的法令规定可以通过多数

股东投票而被解除；法院也可以判令解除董事的职

务，但必须有一定的理由。

1、但大多数的州规定董事会不能解除懂事的职务。

E. Director s’ meetings董事会会议:

1. Regular vs. special定期会议和特别会议:

There are two types of board meetings: regular

and special. A regular board meeting is one which

occurs at a regular interval (e.g., monthly).

All other meetings are "special." The frequency

for regular meetings is usually specified in the

bylaws. [63]

2. Notice通知: No notice is necessary for a

regular meeting. But prior notice (e.g., two

days notice under the RMBCA) is required for a

special meeting. [63]

3. Quorum法定人数: The board may only act if a

quorum is present. Usually, the quorum is a

majority of the total directors in office.

(Example: If there are nine directors, at least

five must be present for there to be a meeting.)

[63]

a. Lower number: Some states allow the

articles or bylaws to set a percentage for

a quorum that is less than a majority.

b. Super majority: Conversely, most

statutes permit the articles or bylaws to

make the quorum more than a majority

(useful as a control device in

closely-held corporations). See RMBCA

8.24(a).

c. Present at vote出席投票: The quorum

must be present at the time the vote is

taken in order for the vote to constitute

the act of the board. Thus even if a quorum

is present at the start of the meeting, a

director may leave and thereby remove the

quorum.

E．董事会会议：有定期会议和特别会议两种，

定期会议的召开通常由公司章程规定，除此之

外的董事会会议都为特别会议。董事会会议必

须有符合法律或公司章程的人数参加，通常为

董事会总人数一半以上，在非上市公司，公司

章程也许会规定更大比例的出席董事，在进行

决议投票时出席的董事才能算有效的出席董

事。

F. Act of board董事会决议: The board may

normally take action only by a vote of a

majority of the directors present at the

meeting. [65]

1. Higher number: In most states, the articles of incorporation may set a higher percentage than a majority for all or certain board actions.

[65]

2. Requirement for meeting: The board may normally take action only at a meeting, not by individual action of the directors. (Example: A contract cannot be executed by the board merely by having a majority of the directors, acting at separate times and places, sign the contract document.) But there are some exceptions: [66]

a. Unanimous written consent: Nearly all

states allow directors to act without a

meeting if they give their unanimous

written consent to the proposed corporate

action. See RMBCA d may be deemed to

have "ratified"this action, or the board

may be "estopped"from dishonoring it. In

either case, the result is as if the board

had formally approved the action in

advance.

3. Objection by director: A director may disassociate herself from board action by filing a written dissent, or by making an oral dissent that is entered in the minutes of the meeting 会议记录. This will shield the director from any possible liability for the corporate action. [67]

F．董事会决议：通常董事会可以在出席会议过半数董事通过做出决议；在大多数州，公司章程通常会要求更高的通过率，做出董事会决议通常只能在董事会

议上做出，但若有所有董事一致同意的书面决议通常

也是有效的；董事可以以提出书面反对意见或将反对

意见记录入董事会会议纪要中，对董事会决议提出异

议，不必为此项决议承担责任。

G. Committees: The full board may appoint various committees. Generally, a committee may take any action which could be taken by the full board. (But there are exceptions. For instance, under the RMBCA, committees may not fill board vacancies填补董事会空缺, amend the articles of incorporation or the bylaws修改公司章程或规章制度, propose actions for shareholder approval 提请股东批准某项决议, or authorize share repurchases

授权股份回购. RMBCA ave the automatic right to bind

the corporation. Instead, one of four doctrines must usually be used to find that the officer could bind the corporation on particular facts: [76]

1. Express actual authority明示的实际授权:

Express actual authority can be given to an

officer either by the corporation’s bylaws, or

by a resolution adopted by the board. (Example:

A board resolution authorizes the Vice President

to negotiate and sign a contract to dispose of

a surplus plant.) [77]

2. Implied actual authority默示的授权:

"Implied actual authority" is authority that is

"inherent in the office." Usually, it is

authority that is inherent in the particular

post occupied by the officer. [77]

a. President总经理: The president is

generally held to have implied actual

authority, merely by virtue of his office,

to engage in ordinary business

transactions, such as hiring and firing

non-officer-level employees and entering

into ordinary-course contracts. But he

does not usually have implied actual

authority to bind the corporation to

non-ordinary-course contracts such as

contracts for the sale of real estate or

for the sale of all of the corporatio n’s

assets.

b. Secretary秘书: The secretary has

implied actual authority to certify the

records of the corporation, including

resolutions of the board of directors.

Therefore, a secretary’s certificate

that a given resolution was duly adopted

by the board is binding on the corporation

in favor of a third party who relies on the

certificate.

c. Removal取消: The board may always

explicitly remove implied actual

authority that would otherwise exist

(e.g., by notifying President that he may

not hire anyone.)

G.董事会可以选出各种委员会来履行董事会

的权利。以下四个原则可以用来判断公司的高

级管理人员是否有权代表公司实施某行为：

1、有明确的真实授权

2、默示的真实授权（职位本身所固有的权利）

a.总经理本身就意味着有权处理公司的日常

事务。

b.秘书，秘书有权证明公司纪录文件的真实

性。

c.董事会可以以明示的方式撤销默示的权利。

3. Apparent authority（类似于表见授权）: An officer has "apparent authority" if the corporation gives observers the appearance that the agent is authorized to act as he is acting. There are two requirements: (1) the corporation, by acts other than those of the officer, must indicate to the world that the officer has the authority to do the act in question; and (2) the plaintiff must be aware of those corporate indications and rely on them. [80]

a. President: In the case of a president,

apparent authority will often flow merely

from the fact that the corporation has

given him that title — he will then have

apparent authority to enter into ordinary

course arrangements. (Example: If Corp.

gives X the title "President," this will

signal to the world that X has authority

to purchase office supplies. Therefore,

if X does purchase office supplies from P,

who knows that X has the title

"President," X will bind Corp. even if the

board of directors has explicitly

resolved that X does not have authority to

purchase such supplies.)

4. Ratification: Under the doctrine of

"ratification," if a person with actual

authority to enter into the transaction learns

of a transaction by an officer, and either

expressly affirms承认it or fails to disavow

否认it, the corporation may be bound. Usually,

P will have to show that the corporation either

received benefits under the contract, or that P

himself relied to his detriment on the existence

of the contract.

3、表见授权，在以下条件下，公司的高级管理人员

具有权利：（1）公司的行为向外界表明该管理人员

有权实施争议的行为（2）原告意识到公司的这种表

示，且对此产生了依赖

a．总经理，公司一旦给与某人“总经理”的头衔，

则意味着该人可以实施公司的日常事务经营。

4、确认，若有权实施某种行为的管理人员知道他人

正在行驶他的这项权利，而对此不予否认或追认的，

则视为公司认可了该行为，对公司产生约束力。IV. SHAREHOLDER ACTION

A. Meetings会议: Nearly all states require a

corporation to hold an annual meeting of shareholders.

See RMBCA 86]

1. Special meeting特别会议: Corporations may also hold a "special"shareholders’ meeting. A special meeting is any meeting other than the regularly-scheduled annual meeting. [87]

a. Who may call召集主体: The board may

call a special meeting. Also, anyone

authorized by the bylaws to call a meeting

(e.g., the president, under many bylaws)

may do so. Finally, some statutes allow

the holders of a certain percentage of the

shares to call a special meeting. (Example:

RMBCA m may be reduced if provided in

the articles or bylaws. [87]

1. Minimum: Some states don’t

allow the percentage for a quorum to

be reduced below a certain number

(e.g., the number cannot be reduced

below one-third in Delaware). But

the RMBCA sets no floor. [87]

2. Higher percentage: Conversely,

nearly all states allow the

articles or bylaws to set a higher

percentage as the quorum. [87]

IV.股东会决议

A．股东会会议，几乎所有的州都要求

由股东会年会。

1、特别会议，除了年会外公司还可以

召开股东特别会议。

a.召集主体：董事会有权召集董事会；

经公司规章授权的其他人也可以召集

董事会；通常拥有一定股份的股东可以

召集董事会。

1、最低限额，一些州通常会规定有权

召集股东会的最低股份份额

2、更高的份额，通常公司可以设定占

有更高份额的股东才能召集股东会。

B. Vote required: Once a quorum is present, the traditional rule is that the shareholders will be deemed to have approved of the proposed action only if a majority of the shares actually present vote in favor of the proposed action. [87]

1. Traditional rule: In other words,

under this approach, an abstention

弃权 is the equivalent of a vote

against. [87]

a. RMBCA示范公司法修订案:

But the RMBCA, in ing

abstentions like votes that

are not cast.

2. Breaking quorum: Once a quorum is

present, the quorum is deemed to

exist for the rest of the meeting,

even if shareholders leave. [88]

3. Written consent: Nearly all

states allow shareholders to act by

unanimous written consent without a

meeting. [88]

a. Non-unanimous written

consent: A minority of states

allow shareholder action in

the form of non-unanimous

written consent.

B．决议通过需要的股东投票数

额

根据传统规则，一项股东会决议

只有在出席会议的半数以上股

东投赞成票时才能通过

1、也就是说在传统规则里，弃

权就等于是投了反对票

a.根据RMBCA弃权不计为参加

投票的总数内

2、一旦股东出席了股东会，即

使中途离开，也视为参加了

后续的会议

3、书面同意，所有的州都允许

在不召开股东会议时，由股

东通过一致同意的书面形式

做出决议

a.在一些州还允许并非一致通过的书面形式做出决议